N.S. Court of Appeal rules injunction on COVID protest shouldn’t have been granted

The original, sweeping court order was granted the day before three outdoor gatherings were planned to protest public health restrictions

CITYnews halifax \ Michael Tutton, The Canadian Press

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HALIFAX — The Nova Scotia Court of Appeal has ruled a lower court judge went too far last year when he banned protests against COVID-19 measures at a hearing that proceeded without the protesters present.

The original, sweeping court order was granted by provincial Supreme Court Justice Scott Norton on May 14, 2021, the day before three outdoor gatherings were planned to protest public health restrictions brought on by the pandemic.

The judge effectively banned public gatherings planned for the next day, basing the decision on evidence from the province’s chief medical officer of health that the outdoor gatherings would spread COVID-19.

The Canadian Civil Liberties Association, represented by lawyer Nasha Nijhawan, later appealed the order, arguing it was too broad and allowing it to stand would be a violation of Charter rights.

A panel of three Appeal Court judges unanimously sided with the civil liberties group, ruling today that Norton was wrong to grant the ban without opponents being able to attend the hearing.

In his written reasons, Justice Joel Fichaud noted that while not all the potential protesters’ names were known, some could have been notified by the province about the hearing.

The attorney general had named Amy Brown, Tasha Everett, Dena Churchill, the group Freedom Nova Scotia, and “John Doe” and “Jane Doe” in their application to stop the protests. Fichaud wrote there were a number of ways to the known organizers, ranging from Facebook Messenger to cell phones.

“The ‘notice’ need not be personal service,” says the decision, citing earlier cases that found “any notice is better than none,” and suggesting it may have been possible to simply telephone the parties known to be organizing the events in question.

Fichaud also wrote that the injunction granted under these circumstances should have been for a limited time, which didn’t occur.

“The attorney general widened the injunction’s requested scope to include everyone in Nova Scotia gathered for any purpose. The judge didn’t address whether the evidence satisfied the criteria for an injunction of that unlimited breadth,” Fichaud wrote.

Justice Peter Bryson said that because the opponents weren’t present, arguments about potential Charter violations of the right to peaceful assembly and freedom of expression weren’t heard or scheduled to be heard.

Justice Duncan Beveridge said all three Appeal Court judges agree the lower court judge “erred by not considering the impact on Charter rights” of issuing the injunction.

Cara Zwibel, a spokesperson for the Canadian Civil Liberties Association, said in an email that the decision is a “a strong signal to governments and courts across Canada that the Charter cannot be ignored when responding to urgent public policy issues.”

Premier Tim Houston said Wednesday that it’s too early to say whether the government will appeal the court’s ruling. However, Houston wasn’t critical of the actions of the former Liberal government, which sought the injunction.

“At that point in time, governments had a collective responsibility to keep people safe, and I know that’s what the intention of the government was,” Houston said at the legislature.

This report by The Canadian Press was first published Oct. 26, 2022.

— With files from Keith Doucette in Halifax.

Michael Tutton, The Canadian Press